Second Reading - Local Government (Amendment) Bill

Madam Speaker,

With your permission, I move that the Local Government

(Amendment) Bill (No. IX) of 2018 be read a second time.

Madam Speaker,

The Local Government (Amendment) Bill (No. IX) of 2018 is

being introduced in Parliament today to address the serious
problem of illegal construction in Mauritius, which for decades,
has been left unresolved.

It is during the Cyclone Berguitta, when the Prime Minister

and I visited the affected areas that we observed with concern,
how some places were flooded because of irresponsible
development on rivers, drains and watercourses. We also saw
cases where walls were erected illegally on private properties
preventing the natural flow of rainwater. There were cases
where houses were built without respecting the statutory
distance from neighboring properties and road reserves.

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 We also saw homes that were constructed below road level,
which you would concur is extremely dangerous.

As you can see Madam Speaker, illegal construction can

have serious implications. Our government does not want this to
happen again. We are all aware that Mauritius is facing
unprecedented challenges due to the effects of climate change.
We have had torrential rain and flash floods like never before.
To alleviate the risks in flood prone areas, the government is
investing heavily in the construction and upgrading of drains. The
Prime Minister announced in the budget that Rs 1.2 billion would
be allocated to the NDU for this purpose.

The amount of Rs 2 billion earmarked under the National

Environment Fund will also be used in part for the construction
and upgrading of drains.

However, it is a fact that illegal constructions on drains,

rivers and canals hinder our efforts. They block the normal flow
of rainwater, therefore worsening the risks of flooding and water
accumulation. This poses a serious threat to the security of the

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population, and damages homes and belongings leading to
material losses and great suffering. How can we remain silent in
such circumstances, when the lives of people are at stake?

Madam Speaker,

Let me pause here to refer to a list regarding encroachment

on drains, rivers, canals and watercourses reported to my
Ministry by the NDU following a survey. The list contains 34
affected areas around the island. Allow me to cite some areas
affected, such as Pamplemousses, Bambous, Medine Camp de
Masque, Moka, Union Park, Rose Hill, Belle Rose amongst others.
How can we allow this irresponsible practice to continue?

We should not forget cases where people are putting up

houses of several floors without a Building and Land Use Permit,
or having obtained a BLUP, do not respect the conditions of the
permit. They even encroach on their neighbors’ property. This
can give rise to “troubles du voisinage” and lead to bad blood
between neighbors.

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 I also had the opportunity to examine the issue of illegal
construction while chairing the committee for Disaster
Monitoring and Risk Reduction, looking into matters related to
refugees of cyclones and flash floods. This allowed my ministry
to carry out an in-depth analysis of the situation. It was clear that
we needed to come up with long-term solutions for the safety
and well-being of the population.

We noted first of all, that there are a number of

inadequacies at different levels in the current situation:

First. There is a shortage of manpower to carry out inspections

of ongoing constructions

Second. The legal framework needs to be revamped

Third. The sanctions and penalties linked to illegal construction

need to be reviewed.

Indeed, the Local Authorities have long lacked the

necessary human resources, especially at Inspectorate level. We
have to admit that the number of Inspectors in our Local
Authorities is in gross disproportion to the number of
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applications received for Building and Land Use Permits. Let me
give you an example for a specific year. For the year 2016/2017,
14,255 applications were received for Building and Land Use
Permits. Out of this number, around 2190 illegal constructions
were reported. However, the Councils have very few inspectors
to carry out monitoring inspections for the Building and Land Use
Permits. I will come back to this issue later.

Madam Speaker, allow me to come to the sentencing

policies as they stand in our law now. Illegal developments are
almost always sentenced by fines, ranging from about 500 to
2,000 rupees. Courts rarely issue pulling down orders in respect
of illegal buildings. Although under the Building and Control Act
2012, fines can go up to Rs 100,000, Courts rarely impose the
maximum fine.

Persons of bad faith have no qualms building illegally and

facing a fine, since the perception is that offenders will only be
sanctioned with a fine and that they will not be required to pull
down the illegally constructed building.

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 This is why my ministry has taken the initiative to come
forward with this Bill. I had also taken the matter up with the
Prime Minister and obtained his support. Members of the House
will surely recall that when the Hon. Prime Minister delivered the
budget speech, he announced that the legal framework would
be amended to allow for the pulling down of illegal
constructions, especially those affecting the drainage system.
Indeed, the Prime Minister is very much alert to the untold
damage that illegal development causes to the environment, as
well as public and private property.

Furthermore, on various occasions, questions were put in

Parliament on the remedies to be brought to this issue. And
rightly so. I recall that in April this year, Hon. Hurreeram asked a
question on the issuing of the Building and Land Use Permit.

I also recall a question from Hon. Lepoigneur in 2017, about

illegal construction in the district of Black River. I believe that this
bill is a matter of great concern not only to the Honorable
members in Government, but also to those in the opposition.

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Madam Speaker,

Let us now come to the purpose of the bill. The purpose of

the bill is three-fold:

First. Harmonize and consolidate the permit system relating to

building and construction laws into one single piece of
legislation,

Second. Better empower the local authorities, as the authorities

empowered to deliver permits, to enforce the law,

Third. Increase the sanctions and penalties provided for the

criminal offence of illegal development and construction in an
effort to deter potential offenders, with sanctions including the
mandatory pulling down of illegal constructions.

I will now elaborate on each of these three points. Allow me

to discuss the first point, concerning the harmonization and
consolidation of laws related to building and construction
permits. As the law stands, the provisions related to building and
construction and development permits are scattered across
three laws:
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  the Town and Country Planning Act 1954,
 the Building Control Act 2012
 and the Local Government Act 2011.

With the Local Government (Amendment) Bill 2018, we

propose to harmonize and consolidate the existing legal
framework into one coherent piece of legislation, namely, the
Local Government Act 2011.

The duplication of legal provisions related to illegal

construction in those different laws is useless, and causes
confusion as to which law is applicable when the Local
Authorities seek to prosecute an offender.

As it is, the Local Authorities are the ones authorized to

issue Building and Land Use Permits. They are empowered, by
law, to carry out inspections and ensure compliance with
building permits. Furthermore, they are also the prosecuting
authority in case of non-compliance with building permits, or
illegal constructions. It therefore makes more sense to

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consolidate all matters relating to permits and illegal structures
under the Local Government Act 2011.

Clause 3 of the Bill is amending Section 2, which is the

definition section of the Local Government Act 2011. We are
introducing a new definition of “Development Works” by
merging the two existing definitions of “Building” and
“Development works”, which have been borrowed from the
Building Control Act 2012, and The Town and Country Planning
Act 1954, respectively. This amendment adopts a wider
definition of all forms of development and construction which
requires a Building and Land Use Permit.

It should be noted that with the new definition of

“Development works” we are also covering any construction on
drains, rivers, canals and any other watercourses. This
amendment will make it a specific offence to construct and build
illegally on any drain, river and canal.

Furthermore, Clause 5 of the Bill is repealing the existing

Sections 117 (1) and (2) of the Local Government Act 2011 and

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replacing them with a new section 117 (1) and (2). The new
sections make it imperative for all persons to have a Building and
Land Use Permit to undertake any construction. Therefore, it
becomes a criminal offence to start any development works
without a valid Building and Land Use Permit delivered by a Local
Authority.

Clause 5 of the Bill is also amending Section 117 (10) of the

Local Government Act 2011, which concerns the delivery of a
Building and Land Use Permit.

With the new amendments, the Building and Land Use

Permit will be approved by the Permits and Business Monitoring
Committee and will be issued by the Local Authorities. The
objective of these amendments is to cure some ambiguities in
the present law.

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Madam Speaker,

Also as part of the harmonization process, Clause 5 of the

Bill introduces new sections 120, 120A and 120B to the Local
Government Act 2011. These new sections have been borrowed
from the Building Control Act 2012. They concern the validity of
a Building and Land Use Permit, the obligations of holders of a
Permit, and most importantly, the inspections to be carried out
by authorized officers of Local authorities to ensure compliance
with a Building and Land Use Permit.

It should be noted that with these new provisions, we are

improving the law concerning the inspections to be carried out
by the Local Authorities.

As the law stands, Section 16 of the Building and Control Act

2012 provides for at least one inspection during the construction
phase. The new Section 120B, to be included in the Local
Government Act 2011, makes provision for regular inspections
throughout the progress of construction works. The Planning
and Land Use department of the Local Authorities will have an

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obligation to carry out these regular inspections, therefore
ensuring compliance with a Building and Land Use Permit. The
reality that has existed so far is that the Local Authorities face a
considerable shortage of staff to carry out regular post control
inspections. I wish to remind the House that an announcement
was made in the 2018/19 budget for the recruitment of 100
officers of the Inspectorate grade who will be required to carry
out inspections across the island. These officers will be provided
with adequate training and will have a key role in ensuring the
proper enforcement of the law.

Furthermore, Clause 5 of this Bill is also introducing a new

Section 120C to the Local Government Act 2011.

Section 120C deals with the Occupation Certificate, which

will henceforth be a combination of the existing Compliance
Certificate from the Building Control Act 2012 and the
Occupation Certificate from the Local Government Act 2011.
This new Occupation Certificate will be mandatory for all
buildings, irrespective of surface area.

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 The Occupation Certificate will have two objectives:
ensuring that buildings have been constructed in accordance
with approved plans, and establishing the date on which the
occupation of a building begins, for the purpose of calculating
local rates and trade fees.

Madam Speaker,

I will now come to the second objective of this Bill, which is

to strengthen our existing legal provisions to support the
empowerment of our 12 Local Authorities. The amendments we
are proposing will give them more statutory powers to deal with
offenders and efficiently tackle the issue of illegal construction.

We are proposing the introduction of a new Sub-Part G

entitled Enforcement Provisions to the Local Government Act
2011. This section provides for a series of new statutory notices
to be served by the Local Authorities on offenders of illegal
constructions, namely a Compliance Notice, an Enforcement
Notice and a Pulling Down Notice, under Sections 127A, 127B
and 127C respectively. The introduction of these new notices will

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be highly effective tools for the Local Authorities as they step up
the monitoring of illegal constructions around the island.

It should be noted that while government is determined to

address the problem of illegal construction, we are also giving
those not complying with the Local Government Act an
opportunity to comply with the law and redress their situation
before they face prosecution.

With the proposed amendments, those persons will not

face prosecution outright for building without a Building and
Land Use Permit and for not complying with the conditions of
the permit that had been issued to them.

Firstly, the Compliance Notice proposed under Section

127A will be served on a person who has started construction
works without a Building and Land Use Permit, asking him,
where possible, to apply for a Building and Land Use Permit,
within a delay not exceeding 30 days. This will serve as a fair
opportunity for this person to comply with the law. It should be
noted however, that once a Compliance Notice is served on a

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person, he shall have no right to undertake any further
development works unless he has been issued with a Building
and Land Use Permit. However, before the said person is eligible
to receive a BLUP, he will have to pay a penalty fee of Rs 50,000
for having started the construction works without a Building and
Land Use Permit, and for making a late application.

It is noteworthy that the amendments proposed also

provide that as long as the delay granted in the Compliance
Notice has not lapsed, or where the person has complied with
the Compliance Notice and has applied for and obtained a
Building and Land Use Permit, he shall not be prosecuted.

Secondly, Section 127B provides for an Enforcement Notice,

which will be served on developers who have a Building and Land
Use Permit, but are not complying with the conditions of their
permit. The Enforcement Notice shall, interalia, specify the
conditions which have not been complied with, the measures,
including pulling down measures that must be implemented to
comply with the conditions, and the period, not exceeding 30
days, within which the measures have to be implemented.
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 Thirdly, under Section 127C, a Pulling Down Notice may be
served on persons who have constructed on rivers, drains and
canals without authority of the Supreme Court, under the Rivers
and Canals Act, and a Building and Land Use Permit from the
Local Authority. Each of these notices must be complied with by
the erring party within a delay not exceeding 30 days, unless an
extension of a maximum of 60 days, has been granted by the
Chief Executive of the Local Authority, upon a request made to
the Chief Executive as per Section 127D.

Madam Speaker,

Let me now come to the third objective of the present Bill,

which is to increase the sanctions provided for the offence of
illegal construction, building and development without a
Building and Land Use Permit, or without respecting the
conditions of the permit.

Through these amendments, illegal construction will

become a specific offence. We are proposing an increase in fines
for this offence. We are also introducing a mandatory pulling

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down order to be issued by the Courts. These two sanctions will
certainly act as deterrents against illegal construction. As the law
stands, there are currently different fines under different laws.
The Local Government Act 2011 provides for a maximum fine of
Rs 25,000. The maximum fine under the Building Control Act
2012 is Rs 100,000. And the maximum fine under the Town and
Country Planning Act 1954 is Rs 1000. Furthermore, there is no
mandatory pulling down order as sanction. Pulling down is
optional at the discretion of the Court.

The Bill will introduce a new Section 127Gentitled Offences

to the Local Government Act 2011. The new section provides for
an increase in the quantum of fines. The minimum fine will be Rs
100,000, with a maximum fine of up to Rs 500,000.

The new section 127G also provides that when the District
Court issues the pulling down order, the offender shall pull down
the illegal construction works at his own expense within 28 days.
In case of noncompliance, the Local Authority concerned shall
have the power to pull down the illegal works. And they will be

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entitled to recover the costs incurred for the pulling down from
the offender as a state civil debt.

Allow me now to summarize Madam Speaker. People must

understand that illegal construction needs to stop. This is why
the law needs to send a strong signal. However, we are willing to
provide a fair chance to all. The three notices that will be issued
by the Local Authorities will give illegal developers ample time to
comply with the law before they are brought to court.

It is only when all three notices have been served,

persistently ignored and not complied with that the Local
Authority will prosecute the erring party.

I need to add that the law will come into operation on a date
to be fixed by proclamation. As such, this gives the Government
and those people who are directly affected by the Local
Government Act time to plan accordingly.

As an attorney, I have myself witnessed cases of

encroachment and illegal structures where the person was not
of bad faith, but simply did not understand the law. This is why

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my ministry will run a sensitization campaign about the
amendments, through the media and the distribution of
pamphlets amongst others, so that people can start to be
mindful of the new provisions of the law.

My ministry will also set up a technical help desk to provide

free assistance to the population, so they may better understand
the new provisions of the law.

The objective is to have a set of clear guidelines so that the

public may understand their rights and duties under the law.

Government will also have to recruit the 100 additional

inspectors, train them and post them in the 12 Local Authorities
before the enforcement of the law.

Madam Speaker,

It is high time that unauthorized constructions are stopped

and encroachments are removed if we want Mauritius to
become a smart country. This Bill gives our country the
opportunity to move forward. For the sake of our people and for

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the sake of our country, I strongly encourage the House to
embrace this opportunity. Time waits for no man.

Madam Speaker, I will propose an amendment at Committee

Stage more particularly at Clause 7 (4) (d) as it should have read
by repealing Section 8 instead of Sub-section (8).

With these words Madam Speaker, I commend the Bill to the

House.

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